More Questions About McGahn in the Flynn Imbroglio

The Washington Post reported on Monday that it was “unclear what the White House counsel, Donald McGahn, did” when Acting Attorney General Sally Yates told him last month that Michael Flynn had misled senior administration officials about his phone conversation with Russian Ambassador Sergey Kislyak. I noted yesterday morning that “it will be crucial to ask what McGahn did with this information, and when, and why.”

We've been reviewing and evaluating this issue with respect to General Flynn on a daily basis for a few weeks, trying to ascertain the truth. We got to a point not based on a legal issue, but based on a trust issue, where a level of trust between the President and General Flynn had eroded to the point where he felt he had to make a change. …

Immediately after the Department of Justice notified the White House Counsel of the situation, the White House Counsel briefed the President and a small group of senior advisors. The White House Counsel reviewed and determined that there is not a legal issue, but rather a trust issue.

During this process it’s important to note that the President did not have his Attorney General, Jeff Sessions, who he trusts immensely, approved by the Senate. When the President heard the information as presented by White House Counsel, he instinctively thought that General Flynn did not do anything wrong, and the White House Counsel’s review corroborated that (emphasis added).

This explanation raises new puzzles and questions. Before considering those puzzles and questions, consider this timeline:

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January 12: David Ignatius reports that according to a senior U.S. government official, “Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29.” Flynn tells Spicer that “sanctions had not come up during the call” and “told the same thing” to Vice President-elect Mike Pence and Chief of Staff Reince Priebus.

January 13: In a press briefing, Spicer “repeated the misinformation, saying that the [Flynn- Kislyak] conversation had ‘never touched on the sanctions.’”

January 23: At his first full press briefing, Spicer said that “Mr. Flynn’s conversation [with Kislyak] had touched on only four subjects, none of them sanctions.”

January 24 or 25: “FBI agents interviewed Flynn” about the calls with Kislyak. It was unclear “whether Mr. Flynn had a lawyer for his interview or whether anyone at the White House knew the interview was happening.” According to current and former government officials, investigators came away from the meeting “believing that [Flynn] was not entirely forthcoming.”

January 26: Yates informs McGahn “about discrepancies between intercepts of Kislyak’s phone calls and public statements by Pence and others that there had been no discussion of sanctions.” According to Spicer, McGahn “immediately … briefed the President and a small group of senior advisors.”

January 27: McGahn again confers with Yates “to try to glean more information.” According to “two officials familiar” with conversations among Trump, Bannon, Priebus, and McGahn, “the matter was viewed skeptically” within the White House.

February 8: Flynn publicly denies discussing sanctions with Kislyak.

February 9: The Washington Postreports that Flynn discussed sanctions on the call with Kislyak. Pence learns from this story that Flynn “misled him about the nature of his contact with a Russian official.” Flynn tells Washington Post that “while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

After February 9: Flynn was “questioned by McGahn, Pence and Priebus.”

February 13: Flynn resigns after news reports about the White House knowing for weeks about Flynn’s misleading statements about the phone call.

Now for some puzzles, and questions.

McGahn’s Legal Conclusion. The biggest thing that jumps out from this timeline is Spicer’s claim that after McGahn heard from Yates on January 26, he reviewed the Flynn matter and “determined that there is not a legal issue” and “corroborated” the President’s instinctual view that Flynn “did not do anything wrong.” It is very hard to understand how McGahn could have reached these conclusions. He lacked full knowledge of the investigation, even after his follow-up discussion with Yates on January 27th. It is not clear whether McGahn even knew what legal issues were implicated by the phone call—a possible Logan Act violation, a counterintelligence problem, or perhaps that Flynn had lied to the FBI in his interview a few days before McGahn heard from Yates. Unless he knew what the precise legal issues were and had confidence in all of the facts, McGahn could not have plausibly concluded that there was “not a legal issue,” and it would have been unwise to do so. (This is especially the case regarding Flynn’s possible lies to the FBI.)

Just as important, the final word on the legality of Flynn’s actions was not McGahn’s to make. That call in the first instance lies with the FBI and especially the Attorney General. Putting it another way, McGahn’s belief about Flynn’s innocence had no impact on the ongoing investigation, which was out of his control.

Even if McGahn strongly believed that Flynn was innocent, it would have been deeply imprudent to act on that belief in advising the President when there was an ongoing investigation focused squarely on the National Security Adviser and the White House more generally. And yet that, according to Spicer, is what happened. After McGahn advised the President that Flynn had done nothing wrong, Spicer said, the White House treated the matter not as a “legal issue” but rather as a “trust issue.” That seems like a big mistake when there is an ongoing FBI investigation centered on the White House that the White House Counsel could not have known everything about.

New Questions. McGahn’s conclusion that Flynn had not violated the law raises at least the following questions that I have not seen answered in the press. (These questions assume that Spicer was truthful in his press conference yesterday.)​

Where did the FBI interview Flynn in the week after the inauguration? If the interview took place on the White House grounds, it is hard to see how McGahn and the President would not have known about it. If the interview was not at the White House, where did the interview take place, and did Flynn tell the White House about it?

When Yates informed McGahn about the discrepancies between Flynn’s public positions and the intercepted information, did she also inform him that the FBI was investigating Flynn?* If so, did she inform him of the legal grounds for the investigation? Also, did she inform him about the FBI interview of Flynn a few days earlier? If Yates did not fully inform McGahn about all of these matters, how could he have concluded that Flynn had no legal troubles?

What type of investigation did McGahn conduct before concluding that Flynn had no legal troubles? Did he interview Flynn before February 9? Did he interview Flynn before he reached his conclusion that Flynn faced no legal jeopardy? If not, how could he have reached that conclusion? If so, how could he be sure Flynn was truthful, especially since the Justice Department had suspicions that Flynn had made misrepresentations about the matter?

Absent confidence about what Flynn was being investigated for, confidence in Flynn’s statements, and complete knowledge of the facts possessed by the FBI, how could McGahn have concluded that Flynn faced no legal jeopardy?

Was it prudent for McGahn and the White House team (including the Chief of Staff) to treat the Flynn matter at some point after January 26 purely as a matter of trust, rather than as an ongoing legal investigation? What steps did McGahn and Priebus take during this period to prepare the President and the White House for that ongoing investigation, and to protect them from it?

What did Spicer mean by this?:

“During this process it’s important to note that the President did not have his Attorney General, Jeff Sessions, who he trusts immensely, approved by the Senate. When the President heard the information as presented by White House Counsel, he instinctively thought that General Flynn did not do anything wrong, and the White House Counsel’s review corroborated that.”

One can perhaps understand why the President and White House Counsel would not seek legal counsel from Sally Yates or her temporary successor. But is Spicer possibly suggesting that the President himself, as chief legal officer for the Executive branch, and on the advice of the White House Counsel, has made the determination that Flynn has committed no crime, thus precluding any prosecution? (To be clear: I do not think this is the right interpretation of this comment. But it is a strange and ambiguous statement by Spicer, and the President is, in fact, the chief legal officer of the Executive branch who can get his legal advice from whomever he wants before making legal determinations that are binding on the Executive branch. Thus the question is worth asking.)

* * *

I know several former White House Counsels and Deputy White House Counsels. They were all tough-minded but extremely prudent in dealing with legal jeopardy related to the White House, especially if that jeopardy touched someone as close to the President as his National Security Advisor. They understood that they lacked control over an FBI/DOJ investigation of the White House, and whenever the whiff of any investigation arose, they worked hard to gather all the facts, to proceed with caution and care for the truth, and—more than anything else—to ensure that the President was protected to the maximum extent possible from the legal fallout, including resulting political damage.

It is far from clear that the current White House Counsel has acted in this fashion. It is the President’s prerogative, of course, to choose whatever style of White House Counsel he likes, and McGahn appears to have the President’s full confidence But even if McGahn enjoys the President’s trust, the questions above transcend presidential prerogative and concern the broader issue of whether and how the Executive branch is ensuring compliance with the law. This is an issue raised by other White House initiatives since the inauguration, of course. It should be of bipartisan concern.

* I missed where Spicer in his press conference stated that Yates "could not confirm there was an investigation." (Hat tip to Josh Gerstein's story on the matter.)

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.